State v. Dorsey

[Cite as State v. Dorsey, 2015-Ohio-4659.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- : Case No. 2014CA00217
:
LADERRIUS DUSHON DORSEY :
: OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No.
2014CR1613
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 9, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN FERRERO EARLE E. WISE, JR.
STARK COUNTY PROSECUTOR 122 Central Plaza North
BY: RENEE WATSON Canton, OH 44702
110 Central Plaza S.
Canton, OH 44702
Stark County, Case No. 2014CA00217 2
Gwin, P.J.
{¶1} Appellant, Laderrius Dushon Dorsey ["Dorsey"] appeals from his
convictions and sentences after a jury trial in the Stark County Court of Common Pleas
for felonious assault, with an attendant firearm specification, having weapons while
under disability, and a repeat violent offender specification.
Facts and Procedural History
{¶2} Dorsey was originally indicted in Stark County Common Pleas Court case
number 2014CR0972 on June 22, 2014. Dorsey was charged with one count of
aggravated robbery pursuant to R.C. 2911.01(A)(1) and/or R.0 2911.01(A)(3) and one
count of felonious assault pursuant to R.C. 2903.11(A)(1) and/or R.C. 2903.11(A)(2). A
later superseding indictment added a repeat violent offender specification pursuant to R.
C. 2941.149, gun specifications pursuant to R.C. 2941.141 and one count of having
weapons under disability pursuant to R.C. 2941.149. On August 15, 2014, Dorsey was
charged with robbery in an unrelated case. State v. Dorsey, Stark County Court of
Common Pleas No. 2014CR1298A.
{¶3} On September 2, 2014, a key witness for the state unexpectedly went into
labor. When the trial court was unwilling to grant a continuance and Dorsey was
unwilling to sign a time waiver, the state dismissed the charges with the understanding
that it would be re-filed as soon as the witness was available. This case was later
dismissed by the state. Identical charges were re-filed in Case Number 2014CR1613
on October 9, 2014 and trial began on October 14, 2014. Dorsey waived his right to a
jury trial as to the charge of having weapons under disability and the repeat violent
Stark County, Case No. 2014CA00217 3
offender specification, electing to have the court decide those matters. The case
proceeded to trial under the later case number.
{¶4} On April 1, 2014, around 2:00 p.m. Thomas Whatley was walking toward
downtown Canton. On Jones Court, he happened upon Dorsey. Whatley has known
Dorsey since 2009, but Dorsey was known to Whatley only as "Bird." Davon Wallace
and Stephanie Dailey were also present.
{¶5} As Whatley approached, the group was gathered around a black car that
Whatley did not recognize. Whatley stopped to talk, but then Dorsey told Whatley he
needed Whatley's money. Dorsey tried to get his hands in Whatley's pants pocket.
When Whatley struggled, Dorsey pulled out a gun and shot Whatley in the leg. Dorsey
dropped the gun and Whatley fled. Dorsey recovered the weapon and ran after
Whatley. Whatley testified that he was convicted of Felonious Assault and Robbery in
2009 and went to prison. He is currently on post-release control. Whatley admitted that
because he was on PRC he could not own or have a firearm.
{¶6} Kimberly Poole was on her front porch when she heard a loud pop. She
looked in the direction of the sound to see a man running up the alley followed by
another man wielding a gun. The first man kicked his way into an abandoned house to
escape the man with the gun. The man with the gun noticed Poole, looked at her,
smiled, "tucked the gun back in," and then ran back down the alley. Moments later a
black car came out of the alley. The car's windows were tinted so Poole could not see if
the gunman was in the car. The man who had hid in the house reemerged and began
screaming he had been shot. Poole's uncle called police.
Stark County, Case No. 2014CA00217 4
{¶7} Canton Police Officer Terry Monter responded to the scene along with
Sergeant Prince. They spoke briefly with Whatley while the medics were working on
him, and then spoke with Poole. She described the gunman as a black male in a white
t-shirt with a "low haircut". She also described the car and was able to recall a few
numbers off the license plate. When shown a photograph of the suspect vehicle to
identify she said it was not the vehicle that she saw. 1T. at 100. When shown a second
photograph of the same vehicle she does identify it as the car, "now that I see the
taillight." Id.
{¶8} Poole was not asked by the police to identify Dorsey as the man she had
seen wielding a gun. The state did not ask Poole during trial if she could identify Dorsey
as the man with the gun that she had seen chasing Whatley.
{¶9} Officers were aware of the vehicle and that Wallace owned it. It had been
photographed in the past. Officers showed a photo of the vehicle to Poole and she
confirmed that was the car she saw coming out of the alley.
{¶10} Officer Monter learned the suspect was known as Bird. He was aware of
an individual associated with the Shorb Block gang who went by the name "Bird." He
obtained a photo of the person he knew as Bird to show Whatley and Whatley identified
Bird, aka Dorsey as the shooter. Officer Monter testified that the U.S. Marshals and
FBI Task Force who the police use to locate fugitives later arrested Appellant in
Atlanta, Georgia. 1T. at 164. When he was arrested in Georgia the Form 8 list
Dorsey's residence as Marietta, Georgia.
Stark County, Case No. 2014CA00217 5
{¶11} Davon Wallace testified for the state at trial. Although he was a mostly
uncooperative witness — claiming he was "on pills" and remembered nothing from the
day in question — he nonetheless placed himself, his car, and Dorsey at the scene.
{¶12} The jury found Dorsey guilty of felonious assault and the accompanying
firearm specification, but acquitted him of robbery and the firearm specification. The trial
court found Dorsey guilty of the repeat violent offender specification and having
weapons under disability.
{¶13} Dorsey was later sentenced to 8 years for felonious assault, 3 years for
the gun specification, 3 years for having weapons under disability, 10 years for the
repeat violent offender specification and the balance of his post release control time -
765 days. Dorsey was ordered to serve the sentences consecutively for an aggregate
total of 24 years plus 765 days.
Assignments of Error
{¶14} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT BY VIOLATING HIS RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY
THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTIONS AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AS
WELL AS OHIO REVISED CODE SECTIONS 2945.71 TO 2945.73.
{¶15} "II. APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A
RESULT OF PROSECUTORIAL MISCONDUCT WHEN THE PROSECUTOR
IMPROPERLY COMMENTED ON:
{¶16} I) APPELLANT'S PRIOR PRISON SENTENCE IN OPENING
STATEMENT;
Stark County, Case No. 2014CA00217 6
{¶17} 2) UNSUBSTANTIATED EVIDENCE OF FLIGHT BY APPELLANT; AND
{¶18} 3) APPELLANT'S RIGHT TO REMAIN SILENT.
{¶19} "III. THE TRIAL COURT ERRED TO THE PRDJUDICE(SIC) OF THE
APPELLANT WHEN IT FAILED TO PROPERLY INSTRUCT THE JURY: 1) AS TO A
FLIGHT INSTRUCTION WHERE THERE WAS A STATEMENT ABOUT APPELLANT'S
ALLEGED FLIGHT; AND 2) AS TO AN INSTRUCTION AS TO DISREGARD A
STATEMENT ABOUT APPELLANT SERVING TIME IN PRISON.
{¶20} "IV. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUSTAIN TILE CONVICTIONS AND THE VERDICTS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIENCE (SIC).
{¶21} "V. THE APPELLANT WAS DENIED THE RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL GUARANTEED UNDER THE SIXTH, AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND
SECTIONS 10, ARTICLE I, OF THE OHIO CONSTITUTION.
{¶22} "VI. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION TO
THE PREJUDICE OF THE APPELLANT BY FAILING TO PREVENT CUMMULATIVE
ERROR, WHICH PREVENTED APPELLANT FROM RECEIVING A FAIR TRIAL."
I.
{¶23} In his first assignment of error, Dorsey contends the trial court erred and
violated his statutory and constitutional rights by denying him a speedy trial.
{¶24} The right to a speedy public trial is established in the Ohio Constitution,
Article I, Section 10. “In any trial, in any court, the party accused shall be allowed to
appear and defend in person and with counsel; to demand the nature and cause of the
Stark County, Case No. 2014CA00217 7
accusation against him, and to have a copy thereof; to meet the witnesses face to face,
and to have compulsory process to procure the attendance of witnesses in his behalf,
and a speedy public trial by an impartial jury of the county in which the offense is
alleged to have been committed * * *.” (Emphasis added.) See, State v. MacDonald, 48
Ohio St. 2d 66, 68, 357 N.E.2d 40, 42(1976).
{¶25} R.C. 2945.71 codifies a defendant's right to a speedy trial and provides
the time within which a hearing or trial must be held for specific offenses.
{¶26} A person charged with a felony shall be brought to trial within 270 days
after the person's arrest or the service of summons. R.C. 2945.71(C)(2). A person
against whom one or more charges of different degrees, whether felonies,
misdemeanors, or combinations of felonies and misdemeanors, all of which arose out of
the same act or transaction, are pending shall be brought to trial on all of the charges
within the time period required for the highest degree of offense charged. R.C.
2945.71(D). Each day an accused is held in jail shall be counted as 3 days. R.C.
2945.71(E).
{¶27} “Upon motion made at or prior to the commencement of trial, a person
charged with an offense shall be discharged if he is not brought to trial within the time
required by sections 2945.71 and 2945.72 of the Revised Code.” R.C. 2945.73(B).
“[S]uch discharge is a bar to any further criminal proceedings against him based on the
same conduct.” R.C. 2945.73(D).
{¶28} R.C. 2945.72 provides for a tolling of the time limitations under certain
circumstances,
Stark County, Case No. 2014CA00217 8
The time within which an accused must be brought to trial, or, in the
case of felony, to preliminary hearing and trial, may be extended only by
the following:
(A) Any period during which the accused is unavailable for hearing
or trial, by reason of other criminal proceedings against him, within or
outside the state, by reason of his confinement in another state, or by
reason of the pendency of extradition proceedings, provided that the
prosecution exercises reasonable diligence to secure his availability;
(B) Any period during which the accused is mentally incompetent to
stand trial or during which his mental competence to stand trial is being
determined, or any period during which the accused is physically
incapable of standing trial;
(C) Any period of delay necessitated by the accused's lack of
counsel, provided that such delay is not occasioned by any lack of
diligence in providing counsel to an indigent accused upon his request as
required by law;
(D) Any period of delay occasioned by the neglect or improper act
of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or
abatement, motion, proceeding, or action made or instituted by the
accused;
(F) Any period of delay necessitated by a removal or change of
venue pursuant to law;
Stark County, Case No. 2014CA00217 9
(G) Any period during which trial is stayed pursuant to an express
statutory requirement, or pursuant to an order of another court competent
to issue such order;
(H) The period of any continuance granted on the accused's own
motion, and the period of any reasonable continuance granted other than
upon the accused's own motion;
(I) Any period during which an appeal filed pursuant to section
2945.67 of the Revised Code is pending.
{¶29} A speedy-trial claim involves a mixed question of law and fact. State v.
Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122. As an appellate court, we
must accept as true any facts found by the trial court and supported by competent,
credible evidence. With regard to the legal issues, however, we apply a de novo
standard of review and thus freely review the trial court’s application of the law to the
facts. Id. When reviewing the legal issues presented in a speedy-trial claim, we must
strictly construe the relevant statutes against the state. Brecksville v. Cook, 75 Ohio
St.3d 53, 57, 661 N.E.2d 706, 709(1996).
{¶30} In the case at bar, Dorsey was arrested in Georgia. He was returned to
Ohio on June 9, 2014. The first day is excluded from the count. State v. Adkins, 4 Ohio
App.3d 231, 232, N.R2d 1314 (3rd Dist 1982), Crim.R. 45 and R.C. 1.14. The speedy
trial clock in this matter therefore began on June 10, 2014. R.C. 2945.72(A); State v.
Bass, 5th Dist. Stark No. 1995 CA 00347, 1997 WL 116971(Jan. 17, 1997).
{¶31} On August 15, 2014, Dorsey was indicted in Stark County Court of
Common Pleas, Case No. 2014CR1298A on one count of robbery, a felony of the
Stark County, Case No. 2014CA00217 10
second degree for an incident that occurred while the charges in the case bar were
pending. The Ohio Supreme Court has held that the triple count provision only applies
when the person is being held in jail in lieu of bail solely on the pending case. State v.
McDonald, 48 Ohio St. 2d 66, 357 N.E.2d 40(1976), paragraph one of the syllabus.
Accord, State v. Ladd, 56 Ohio St. 2d 197, 383 N.E.2d 579(1978)("The fact that in
MacDonald one charge was federal and the other state, whereas here both charges
were by the state, does not justify our deviating from the rule at this time.” 56 Ohio St. 2d
at 203, 383 N.E.2d 40).
{¶32} Thus, the time calculation is:
June 10, 2014 to August 15, 2014 67 days x 3 = 201 days
August 15, 2014 to October 14, 2014 61 days
201 days + 61 days = 262 days
{¶33} Accordingly, Dorsey was tried within the 270-day requirement set forth in
R.C. 2945.71(C)(2).
{¶34} Dorsey's first assignment of error is overruled.
II.
{¶35} In his second assignment of error, Dorsey contends the prosecutor
committed misconduct by commenting on Dorsey's prior incarceration, his flight from
the jurisdiction and his right to remain silent.
{¶36} Dorsey failed to object; accordingly, he has waived all but plain error.
State v. Pickens, 141 Ohio St. 3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 109. To
prevail on plain-error review, Dorsey must establish both that misconduct occurred and
that but for the misconduct, the outcome of the trial clearly would have been otherwise.
Stark County, Case No. 2014CA00217 11
Pickens, citing State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002); Crim.R.
52(B).
{¶37} The test for prosecutorial misconduct is whether the remarks were
improper and, if so, whether they prejudicially affected the accused’s substantial rights.
State v. Smith, 14 Ohio St. 3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the
analysis “is the fairness of the trial, not the culpability of the prosecutor.” Smith v.
Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982). Accord, State v.
Pickens, 141 Ohio St.3d at ¶110, 2014-Ohio-5445, 25 N.E.3d 1023.
1. Prior criminal history
{¶38} Dorsey first complains that the state in opening statement informed the
jury that Dorsey had met Whatley in prison, specifically,
Thomas [Whatley] and [Dorsey] - - well, there is really no better
way to put it, they knew each other. Well, they knew each other from the
institution.
1T. at 84. A similar comment is later repeated by the prosecutor,
The person known as Laderrius Dorsey would have been together
in an institution with Thomas Whatley at the time described.
***
They pull out a photograph of Laderrius Dorsey. They show that to
Thomas Whatley, and he says, Yeah, that's the guy. That's the guy I
knew from before.
1T. at 87.
Stark County, Case No. 2014CA00217 12
{¶39} In the case at bar, Dorsey informed the state and the trial court prior to the
start of the jury trial that he would have the having weapons while under disability
charge and the repeat violent offender specification tried to the court. 1T. at 7-10.
Further, Dorsey's trial counsel informed the trial court and the prosecutor that Dorsey
would not testify. 1T. at 10. Thus, the prosecutor's statements were improper in that
they placed before the jury Dorsey's prior bad acts. No reason is given as to why the
prosecutor had to mention "the institution" rather than simply stating the pair were
acquaintances. The fact that Dorsey had been in prison served no legitimate purpose
beyond suggesting to the jury that Dorsey had a criminal record and had been to prison
just like the victim Thomas Whatley.
{¶40} In the case at bar, we find that, although of doubtful relevance, those
relatively minor statements could not have prejudiced defendant and were harmless
error. State v. Gumm, 73 Ohio St. 3d 413, 426, 653 N.E.2d 253, 266(1995).
{¶41} Dorsey further claims Detective Monter testified he knew Dorsey, aka Bird,
as a member of the Shorb Block Gang. 1T. at 160-161.
2. Gang affiliation
{¶42} Trial courts must treat evidence of gang affiliation with care since most
jurors are likely to look unfavorably upon a defendant’s membership in a street gang.
See United States v. Jobson, 102 F.3d 214, 219 n. 4 (6th Cir.1996). Evidence of gang
affiliation has been held admissible to establish the defendant’s opportunity to commit a
crime. Jobson 102 F.3d at 221, or where the interrelationship between people is a
central issue in the case, United States v. Gibbs, 182 F.3d 408, 430 (6th Cir.1999),
subject to balancing the probative value of such evidence against its prejudicial effect
Stark County, Case No. 2014CA00217 13
pursuant to Rule 403 of the Federal Rules of Evidence. See Jobson, 102 F.3d at 221–
23.
{¶43} Testimony that Detective Monter and his partner normally work gang
cases and that the area is known for its gang violence served primarily as permissible
background evidence. 1T. at 156.
{¶44} However, testimony was further elicited concerning gang members,
Myself and Sergeant Prince had just recently taken photographs of
that vehicle. We were aware of that vehicle belonging to members of the
Shorb Block Gang, and we immediately showed the victim [sic.] photos
that we had just got from that vehicle. She stated a hundred percent that
that was the vehicle in question. We knew that vehicle to be owned by
Devon Wallace.
1T. at 160. This testimony did not implicate Dorsey. Defense counsel may not have
objected as a strategic choice to cast suspicion upon Wallace, or discredit his testimony
at trial.
{¶45} More troubling is the testimony directly suggesting that Dorsey is a gang
member,
I was aware of an individual who associated with Shorb Block by
the name of Bird. I had dealt with the other situations that had come
across my desk with that name.
So at that point I went to headquarters. I identified who Bird was,
got a photograph of him, went to Mercy Hospital, met with the victim,
spoke to him briefly, did a taped statement, showed him a picture of
Stark County, Case No. 2014CA00217 14
Laderrius Dorsey, who I knew as Bird, member of Shorb Block, and he
identified him as the shooter and the person who robbed him that day.
1T. at 161. No attempt was made by the state to show that the gang affiliation was
central to Dorsey's opportunity or motive to commit the crime. Nothing about the
suggested gang affiliation provided direct or even circumstantial evidence that Dorsey
committed the crimes charged. A defendant’s membership in a gang is inadmissible to
prove that defendant had a propensity to commit crime. State v. Robb (2000), 88 Ohio
St.3d 59, 69.
{¶46} In the case at bar, we find that, although of doubtful relevance, those
relatively minor statements concerning gang affiliation in the testimony of Detective
Monter could not have prejudiced defendant and were harmless error. State v. Gumm,
73 Ohio St. 3d 413, 426, 653 N.E.2d 253, 266(1995).
3. Flight
{¶47} Dorsey complains that the prosecutor committed misconduct when he
discussed Dorsey's fight to Georgia. He argues that the state failed to recognize that
Dorsey was born in Georgia and gave the booking staff at the Stark County Jail a
Georgia address.
{¶48} Flight is akin to "an admission by conduct which expresses consciousness
of guilt." United States v. Martinez, 681 F.2d 1248, 1256(10th Cir. 1982), citing
McCormick, Evidence (2nd Ed.1972) 655, Section 271. Thus, " ' "[i]t is today universally
conceded that the fact of an accused's flight * * * [is] admissible as evidence of
consciousness of guilt, and thus of guilt itself." ' " State v. Williams (1997), 79 Ohio St. 3d
1, 11, 1997-Ohio-407, 679 N.E.2d 646, quoting State v. Eaton, 19 Ohio St. 2d 145, 160,
Stark County, Case No. 2014CA00217 15
249 N.E.2d 897(1969), death penalty vacated 408 U.S. 935, 92 S. Ct. 2857, 33 L.Ed.2d
750(1972).
{¶49} In the case at bar, the evidence supports the statements made by the
prosecution. The state produced evidence that Dorsey left the jurisdiction following the
crime. Accordingly, the prosecutor commented on the evidence before the jury and his
actions were not in any manner improper. State v. Bynes, 6th Dist. Lucas No. L-07-
1309, 2009-Ohio-5182, ¶38.
4. Commenting on right not to testify and to remain silent.
{¶50} Dorsey argues that the prosecutor improperly and prejudicially
commenting on Dorsey's silence in closing argument.
{¶51} The first instance cited by Dorsey is as follows,
We heard from Thomas Whatley. We heard from the witnesses
who were here to testify.
1T. at 209.
{¶52} Dorsey next complains that the following argument constituted an
impermissible comment upon his right to remain silent and to not testify,
And let's talk a little bit about Bird, the Defendant here. No one can
say that Bird had the victim's stuff, his cash or his phone. Do you know
why?
Well, pardon the pun, but Bird took off, flew away, flew the coop.
Insert your own bad puns wherever you like them because he took off.
Stark County, Case No. 2014CA00217 16
And you know what flight is, folks? Evidence of guilt. Because
innocent people don't run away. Innocent people don't take off to Georgia
or wherever it was the Marshals found him.
Do you know what our victim did? Our victim talked to the police.
He talked to the Grand Jury. He talked to the Prosecutor, talked to a
Judge, a Court Reporter and 14 jurors.
Guilty people flee. That's what they do; international sign. That's
why we don't know whether he had Thomas's cell phone or his cash, a
twenty-dollar bill or eight of them, no idea because he wasn't around. Was
he in the back seat of that charcoal or gray or black car? Don't know. Was
he beating feet north up that alley? No clue because he took off.
1T. at 226-227.
{¶53} A prosecutor is entitled to a certain degree of latitude in closing
arguments. State v. Liberatore, 69 Ohio St. 2d 583, 589, 433 N.E.2d 561. Thus, it falls
within the sound discretion of the trial court to determine the propriety of these
arguments. State v. Maurer, 15 Ohio St. 3d 239, 269, 473 N.E.2d 768(1984). A
conviction will be reversed only where it is clear beyond a reasonable doubt that, absent
the prosecutor’s comments, the jury would not have found the defendant guilty. State v.
Benge, 75 Ohio St. 3d 136, 141, 1996-Ohio-227, 661 N.E.2d 1019. Furthermore,
“[i]solated comments by a prosecutor are not to be taken out of context and given their
most damaging meaning.” Donnelly v. DeChristoforo, 416 U.S. 637, 647, 94 S. Ct. 1868,
40 L.Ed.2d 431(1974).
Stark County, Case No. 2014CA00217 17
{¶54} The state may comment upon a defendant’s failure to offer evidence in
support of its case. State v. Collins, 89 Ohio St. 3d 524, 733 N.E.2d 1118(2000). “Such
comments do not imply that the burden of proof has shifted to the defense, nor do they
necessarily constitute a penalty on the defendant’s exercise of his Fifth Amendment
right to remain silent.” Id. at 528-29, 733 N.E.2d 1118. The state must refrain from
commenting on a decision not to testify, but the state may challenge the weight of
evidence offered by the defense in support of its theory of the case. Id. The state does
not have a duty to disprove every possible circumstance suggested by the defendant.
Id.
{¶55} “[T]he fact that one of the parties fails to call a witness who has some
knowledge of the matter under investigation may be commented upon.” State v. Petro,
148 Ohio St. 473, 498, 162, 76 N.E.2d 355, 367(1948); State v. Champion, 109 Ohio St.
281, 289-290, 142 N.E. 141, 143-144(1924). State v. D’Ambrosio (1993), 67 Ohio St. 3d
185, 193, 1993-Ohio-170, 616 N.E.2d 909,916(1993).
{¶56} In State v. Clemons the Ohio Supreme Court stated; “[t]he comment that
the defense did not call an expert to testify that defendant “blacked out” during
proceedings is not error. The comment that a witness other than the accused did not
testify is not improper, State v. D’Ambrosio (1993), 67 Ohio St. 3d 185, 193, 616 N.E.2d
909, 916, since the prosecution may comment upon the failure of the defense to offer
evidence in support of its case. State v. Williams (1986), 23 Ohio St. 3d 16, 19-20, 23
OBR 13, 16-17, 490 N.E.2d 906, 910-911; State v. Bies (1996), 74 Ohio St. 3d 320, 326,
658 N.E.2d 754, 760.” Clemons, supra, 82 Ohio St. 3d 438, 452, 1998-Ohio-452, 692
N.E.2d 1009, 1022.
Stark County, Case No. 2014CA00217 18
{¶57} In the case at bar, Dorsey mischaracterizes the prosecutor’s statement.
The prosecutor was commenting on the lack of evidence and not on the fact that Dorsey
had not testified. Moreover, the trial court instructed the jury that it must decide the case
on the evidence and that opening statements and closing arguments are not evidence.
Further, the trial court instructed the jury that Dorsey had a constitutional right not to
testify and the jury must not consider the fact that he did not testify for any purpose. We
presume that the jury followed the court’s instructions. State v. Loza, 71 Ohio St. 3d 61,
79, 641 N.E.2d 1082(1994).
{¶58} We find that the language used by the prosecutor in this case is not such
that the jury would “naturally and necessarily” take it as comment on the failure of the
accused to testify, and thus fails the test set forth in State v. Cooper, 52 Ohio St. 2d 163,
370 N.E.2d 725(1977), vacated on other grounds, 438 U.S. 911, 98 S. Ct. 3137, 57
L.Ed.2d 1157(1978). State v. Williams, 23 Ohio St. 3d 16, 20, 490 N.E.2d 906,
911(1986).
{¶59} For the foregoing reasons, Dorsey's second assignment of error is
overruled.
III.
{¶60} In his third assignment of error, Dorsey argues the trial court erred in
failing to give a curative instruction and failing to give a jury instruction on flight. Dorsey
again takes issue with the prosecutor arguing that Dorsey's flight from Canton was
indicative of guilt and stating that Dorsey and Whatley knew each other "from the
institution" in opening and closing statements.
Stark County, Case No. 2014CA00217 19
{¶61} “[A]fter arguments are completed, a trial court must fully and completely
give the jury all instructions which are relevant and necessary for the jury to weigh the
evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St. 3d 206,
553 N.E.2d 640(1990), paragraph two of the syllabus.
{¶62} Rule 30 of the Ohio Rules of Criminal Procedure provides that a party
must object to an omission in the court’s instructions to the jury in order to preserve the
error for appeal. “A criminal defendant has a right to expect that the trial court will give
complete jury instructions on all issues raised by the evidence.” State v. Williford, 49
Ohio St. 3d 247, 251-252, 551 N.E.2d 1279(1990). (Citations omitted). Where the trial
court fails to give complete or correct jury instructions the error is preserved for appeal
when defendant objects, whether or not there has been a proffer or written jury
instruction offered by the defendant. (Id.). Even if an objection is not made in
accordance with Rule 30 of the Ohio Rules of Criminal Procedure, or a written jury
instruction is required to be offered by the defendant, Rule 52(B) of the Ohio Rules of
Criminal Procedure, the so-called “plain-error doctrine” applies to the failure of the court
to properly instruct the jury on “all matters of law necessary for the information of the
jury in giving its verdict…” pursuant to Section 2945.11 of the Ohio Revised Code. See,
State v. Williford, supra; State v. Gideons, 52 Ohio App. 2d 70, 368 N.E.2d 67(8th Dist.
1977).
{¶63} In Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L.Ed.2d
25(1999), the United State Supreme Court held that because the failure to properly
instruct the jury is not in most instances structural error, the harmless-error rule of
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705(1967) applies to a
Stark County, Case No. 2014CA00217 20
failure to properly instruct the jury, for it does not necessarily render a trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence.
{¶64} In the case at bar, Dorsey concedes that he did not object nor did he
request orally or in writing the limiting instruction that he now contends should have
been given by the trial court. Accordingly, our review of the alleged error must proceed
under the plain error rule of Crim. R. 52(B).
{¶65} In criminal cases where an objection is not raised at the trial court level,
“plain error” is governed by Crim. R. 52(B), which states, "Plain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court." An alleged error "does not constitute a plain error ... unless, but
for the error, the outcome of the trial clearly would have been otherwise." State v. Long,
53 Ohio St. 2d 91, 372 N.E.2d 804(1978), paragraph two of the syllabus.
{¶66} “[A]n appellate court may, in its discretion, correct an error not raised at
trial only where the appellant demonstrates that (1) there is an error; (2) the error is
clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights, which in the ordinary case means it affected the outcome
of the district court proceedings; and (4) the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S.
258, 262 130 S. Ct. 2159, 176 L.Ed.2d 1012(2010)(internal quotation marks and
citations omitted).
{¶67} The defendant bears the burden of demonstrating that a plain error
affected his substantial rights. United States v. Olano, 507 U.S. at 725,734, 113 S. Ct.
1770, 123 L.Ed.2d 508(1993); State v. Perry, 101 Ohio St. 3d 118, 120 802 N.E.2d
Stark County, Case No. 2014CA00217 21
643(2004). Even if the defendant satisfies this burden, an appellate court has discretion
to disregard the error. State v. Barnes, 94 Ohio St. 3d 21, 27, 759 N.E.2d 1240 (2002);
State v. Long, 53 Ohio St. 2d 91, 372 N.E.2d 804 (1978), paragraph three of the
syllabus; Perry, supra, at 118, 802 N.E.2d at 646.
{¶68} It is well established that evidence of flight is admissible, as it tends to
show consciousness of guilt. Sibron v. New York, 392 U.S. 40, 66, 88 S. Ct. 1889, 20
L.Ed.2d 917(1967). Further, a jury instruction on flight is appropriate if there is sufficient
evidence in the record to support the charge. See United States v. Dillon, 870 F.2d
1125(6th Cir. 1989). The decision whether to issue a flight instruction rests within the
sound discretion of the trial court and will not be reversed absent an abuse of discretion.
State v. Sims, 13 Ohio App. 3d 287, 289, 469 N.E.2d 554(1st Dist. 1984). Abuse of
discretion requires more than simply an error in judgment; it implies unreasonable,
arbitrary, or unconscionable conduct by the court. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶69} In the case at bar, Dorsey may well have not requested an instruction on
flight because he argued to the jury that he did not flee; rather he simply returned to his
home. We cannot say that the trial court committed plain error in failing to instruct the
jury on flight, when neither party requested such an instruction, under the circumstances
presented in the case at bar. It appears “beyond a reasonable doubt that the lack of a
jury instruction on "flight" did not contribute to the verdict obtained.” Chapman v.
California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); see Delaware v. Van
Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986) (“[A]n otherwise
valid conviction should not be set aside if the reviewing court may confidently say, on
Stark County, Case No. 2014CA00217 22
the whole record, that the constitutional error was harmless beyond a reasonable
doubt”).
{¶70} As we noted in our disposition of Dorsey's second assignment of error,
although of doubtful relevance, the relatively minor references that Dorsey knew
Whatley from "the institution" could not have prejudiced defendant and were harmless
error. State v. Gumm, 73 Ohio St. 3d 413, 426, 653 N.E.2d 253, 266(1995).
{¶71} Accordingly, Dorsey's third assignment of error is overruled.
IV.
{¶72} In his fourth assignment of error, Dorsey challenges the sufficiency of the
evidence; he further contends his conviction is against the manifest weight of the
evidence produced by the state at trial.
{¶73} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St. 3d 163, 926 N.E.2d
1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App. 3d 633, 933 N.E.2d 296,
2010–Ohio–2720, ¶68.
{¶74} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St. 3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
Stark County, Case No. 2014CA00217 23
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue,
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶75} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S. Ct. 2211, 72 L. Ed. 2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
Stark County, Case No. 2014CA00217 24
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶76} In the case at bar, there is no dispute that Whatley was shot in the leg.
There is further no dispute that a handgun was used to shoot Whatley. Dorsey argues
that the evidence did not conclusively demonstrate who fired the gun.
{¶77} In the case at bar, Dorsey was charged with felonious assault pursuant to
R.C. 2903.11,
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another’s unborn;
(2) Cause or attempt to cause physical harm to another or to
another’s unborn by means of a deadly weapon or dangerous ordnance.
{¶78} A “firearm” is defined under the code as “any deadly weapon capable of
expelling or propelling one or more projectiles by the action of an explosive or
combustible propellant.” R.C. 2923.11(B).
{¶79} “Serious physical harm to persons” as defined in R.C. 2901.01(A)(5)
means any of the following in pertinent part:
(a) Any mental illness or condition of such gravity as would
normally require hospitalization or prolonged psychiatric treatment;
Stark County, Case No. 2014CA00217 25
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity.
{¶80} R.C. 2901.22 defines “knowingly” as follows:
(B) A person acts knowingly, regardless of his purpose, when he is
aware that his conduct will probably cause a certain result or will probably
be of a certain nature. A person has knowledge of circumstances when he
is aware that such circumstances probably exist.
{¶81} Whether a person acts knowingly can only be determined, absent a
defendant's admission, from all the surrounding facts and circumstances, including the
doing of the act itself.” State v. Huff, 145 Ohio App. 3d 555, 563, 763 N.E.2d 695(1st
Dist. 2001) (footnotes omitted). Thus, “[t]he test for whether a defendant acted
knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,
2nd Dist. Montgomery No. 16221, 1998 WL 214606 (May 1, 1998) (citing State v. Elliott,
104 Ohio App. 3d 812, 663 N.E.2d 412(10th Dist. 1995)).
{¶82} “A person is presumed to intend the natural, reasonable and probable
consequences of his voluntary acts.” State v. Carter, 72 Ohio St. 3d 545, 554, 651
N.E.2d 965 (1995). See also State v. Robinson, 161 Ohio St. 213, 118 N.E.2d 517
(1954), paragraph five of the syllabus. “‘[A] firearm is an inherently dangerous
instrumentality, the use of which is likely to produce death.’" State v. Seiber, 56 Ohio
St.3d 4, 14, 564 N.E.2d 408 (1990), quoting State v. Widner, 69 Ohio St. 2d 267, 270,
431 N.E.2d 1025 (1982).
Stark County, Case No. 2014CA00217 26
{¶83} In State v. Jester, 32 Ohio St. 3d 147, 152, 512 N.E.2d 962, 968(1987), the
Ohio Supreme Court held:
Where an inherently dangerous instrumentality was employed, a
homicide occurring during the commission of a felony is a natural and
probable consequence presumed to have been intended. Such evidence
is sufficient to allow a jury to find a purposeful intent to kill. State v. Clark
(1978), 55 Ohio St. 2d 257, 9 O.O.3d 257, 379 N.E.2d 597, syllabus; State
v. Johnson (1978), 56 Ohio St. 2d 35, 10 O.O.3d 78, 381 N.E.2d 637.
Accord, State v. Widner, 69 Ohio St. 2d 267, 431 N.E.2d 1025(1982) (finding purpose to
kill in passenger's firing gun at individual from moving vehicle); State v. Dunlap, 73 Ohio
St.3d 308, 316, 652 N.E.2d 988(1995), certiorari denied (1996), 516 U.S. 1096, 116
S. Ct. 1096, 133 L. Ed. 2d 765. State v. Banks, 10th Dist. No. 01 AP–1179, 2002–Ohio–
3341 at ¶ 24.
The trier of fact may infer an intention to kill from the surrounding
circumstances where the natural and probable consequence of a
defendant's actions is to produce death. State v. Robinson (1954), 161
Ohio St. 213, 118 N.E.2d 517, paragraph five of the syllabus; State v.
Edwards (1985), 26 Ohio App. 3d 199, 200, 499 N.E.2d 352. Here,
defendant looked at a group of individuals, pointed a semi-automatic
handgun in their direction, and fired five shots. In so doing, one of the
bullets fired from the handgun struck and killed his driver, Andre J.
Bender. Although defendant claims the evidence equally supports a
conclusion that he was merely trying to scare individuals in the group by
Stark County, Case No. 2014CA00217 27
firing the handgun into the air, “[t]he act of pointing a firearm and firing it in
the direction of another human being is an act with death as a natural and
probable consequence.” State v. Brown (Feb. 29, 1996), Cuyahoga App.
No. 68761, unreported. Compare State v. Jester (1987), 32 Ohio St. 3d
147, 152, 512 N.E.2d 962 (when an inherently dangerous instrumentality
is employed in the commission of a robbery, such evidence permits a jury
to find a purposeful intent to kill).
State v. Turner, 10th Dist. No. 97APA05–709, 1997 WL 798770(Dec. 30, 1997), quoting
State v. Brown, 8th Dist. No. 68761, 1996 WL 86627(Feb. 29, 1996) dismissed, appeal
not allowed, 77 Ohio St. 3d 1468, 673 N.E.2d 135.
{¶84} A review of the record shows the evidence presented was legally sufficient
to support Dorsey's conviction, as there was evidence that Dorsey produced a gun and
fired it at Whatley. Such evidence, if believed, was adequate to prove that Dorsey
knowingly attempted to cause physical harm to Whatley with a deadly weapon.
{¶85} If the state relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61
Ohio St. 3d 259, 272, 574 N.E.2d 492(1991), paragraph one of the syllabus,
superseded by State constitutional amendment on other grounds as stated in State v.
Smith, 80 Ohio St. 3d 89, 684 N.E.2d 668(1997). “Circumstantial evidence and direct
evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at
paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct
evidence are indistinguishable so far as the jury's fact-finding function is concerned, all
Stark County, Case No. 2014CA00217 28
that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,
against the standard of proof beyond a reasonable doubt.“ Jenks, 61 Ohio St. 3d at 272,
574 N.E.2d 492. While inferences cannot be based on inferences, a number of
conclusions can result from the same set of facts. State v. Lott, 51 Ohio St. 3d 160, 168,
555 N.E.2d 293(1990), citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329,
331, 130 N.E.2d 820(1955). Moreover, a series of facts and circumstances can be
employed by a jury as the basis for its ultimate conclusions in a case. Lott, 51 Ohio
St.3d at 168, 555 N.E.2d 293, citing Hurt, 164 Ohio St. at 331, 130 N.E.2d 820.
{¶86} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Dorsey committed the crime of felonious assault. We hold, therefore, that the state met
its burden of production regarding each element of the felonious assault and,
accordingly, there was sufficient evidence to support Dorsey’s conviction.
{¶87} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence, upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb.
10, 1982). Accordingly, judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St. 2d
279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n
determining whether the judgment below is manifestly against the weight of the
evidence, every reasonable intendment and every reasonable presumption must be
Stark County, Case No. 2014CA00217 29
made in favor of the judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132
Ohio St. 3d 328, 334, 972 N.E.2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc.
v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio
Jurisprudence 3d, Appellate Review, Section 603, at 191–192 (1978). Furthermore, it is
well established that the trial court is in the best position to determine the credibility of
witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing
State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).
{¶88} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App. 3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App. 3d 197,
201, 722 N.E.2d 125(7th Dist. 1999).
{¶89} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St. 3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S. Ct. 457, 86 L. Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct.
843, 74 L. Ed. 2d 646 (1983).
Stark County, Case No. 2014CA00217 30
{¶90} Although Dorsey cross-examined the witnesses to show that someone
else, including Whatley, may have had the handgun, the jury as the trier of fact was free
to accept or reject any and all of the evidence offered by the parties and assess the
witness’s credibility. "While the jury may take note of the inconsistencies and resolve or
discount them accordingly * * * such inconsistencies do not render defendant's
conviction against the manifest weight or sufficiency of the evidence." State v. Craig,
10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens,
10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the
jury need not believe all of a witness' testimony, but may accept only portions of it as
true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶21, citing State
v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin
No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App. 3d 667, 607
N.E.2d 1096 (4th Dist. 1992). Although the evidence may have been circumstantial, we
note that circumstantial evidence has the same probative value as direct evidence.
State v. Jenks, supra.
{¶91} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. The jury neither lost his way
nor created a miscarriage of justice in convicting Dorsey of the charge.
{¶92} Based upon the foregoing and the entire record in this matter, we find
Dorsey's conviction is not against the sufficiency or the manifest weight of the evidence.
To the contrary, the jury appears to have fairly and impartially decided the matters
before them. The jury as a trier of fact can reach different conclusions concerning the
Stark County, Case No. 2014CA00217 31
credibility of the testimony of the state’s witnesses and Dorsey's arguments. This court
will not disturb the jury's finding so long as competent evidence was present to support
it. State v. Walker, 55 Ohio St. 2d 208, 378 N.E.2d 1049 (1978). The jury heard the
witnesses, evaluated the evidence, and was convinced of Dorsey's guilt.
{¶93} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime beyond a reasonable doubt.
{¶94} Dorsey's fourth assignment of error is overruled.
V.
{¶95} In his fifth assignment of error, Dorsey argues that he received ineffective
assistance of counsel for the reasons set forth in his previous four assignments of error.
{¶96} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838, 122
L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674(1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373(1989).
{¶97} Counsel is unconstitutionally ineffective if his performance is both
deficient, meaning his errors are “so serious” that he no longer functions as “counsel,”
and prejudicial, meaning his errors deprive the defendant of a fair trial. Maryland v.
Kulbicki, 577 U.S. __, 2015 WL 5774453(Oct. 5, 2015)(citing Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
Stark County, Case No. 2014CA00217 32
{¶98} “‘The failure to object to error, alone, is not enough to sustain a claim of
ineffective assistance of counsel.’ ” State v. Fears, 86 Ohio St. 3d 329, 347, 715 N.E.2d
136(1999), quoting State v. Holloway (1988), 38 Ohio St. 3d 239, 244, 527 N.E.2d
831(1988). A defendant must also show that he was materially prejudiced by the failure
to object. Holloway, 38 Ohio St. 3d at 244, 527 N.E.2d 831. Accord, State v. Hale, 119
Ohio St. 3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶233.
{¶99} Debatable strategic and tactical decisions may not form the basis of a
claim for ineffective assistance of counsel. State v. Phillips, 74 Ohio St. 3d 72, 85, 1995–
Ohio–171. Even if the wisdom of an approach is questionable, “debatable trial tactics”
do not constitute ineffective assistance of counsel. Id. “Poor tactics of experienced
counsel, however, even with disastrous result, may hardly be considered lack of due
process * * *.” State v. Clayton, 62 Ohio St. 2d 45, 48, 402 N.E.2d 1189 (1980)(quoting
United States v. Denno, 313 F.2d 364 (2nd Cir.1963), certiorari denied 372 U.S. 978, 83
S. Ct. 1112, 10 L. Ed. 2d 143.
{¶100} None of the instances raised by Dorsey rise to the level of prejudicial error
necessary to find that he was deprived of a fair trial. Having reviewed the record that
Dorsey cites in support of his claim that he was denied effective assistance of counsel
as previously noted in our disposition of Dorsey's first, second third and fourth
assignments of error, we find Dorsey was not prejudiced by defense counsel’s
representation of him. The result of the trial was not unreliable nor were the proceedings
fundamentally unfair because of the performance of defense counsel.
{¶101} Dorsey's fifth assignment of error is overruled.
VI.
Stark County, Case No. 2014CA00217 33
{¶102} In his sixth assignment of error, Dorsey contends that he was denied a fair
trial due to cumulative errors by the trial court.
{¶103} In State v. Brown, 100 Ohio St. 3d 51, 2003–Ohio–5059, 796 N.E.2d 506,
the Ohio Supreme Court recognized the doctrine of cumulative error. However, as
explained in State v. Bethel, 110 Ohio St. 3d 416, 2006–Ohio–4853, 854 N.E.2d 150,
¶197, it is simply not enough to intone the phrase “cumulative error.” State v. Sapp, 105
Ohio St. 3d 104, 2004–Ohio–7008, 822 N.E.2d 1239, ¶103.
{¶104} Here, Dorsey cites the doctrine of cumulative error, lists or incorporates
the previous assignments of error, and gives no analysis or explanation as to why or
how the errors have had a prejudicial cumulative effect. Thus, this assignment of error
has no substance under Bethel and Sapp.
{¶105} Further, where we have found that the trial court did not err, cumulative
error is simply inapplicable. State v. Carter, 5th Dist. Stark No.2002CA00125, 2003–
Ohio-1313 at ¶37. To the extent that we have found that any claimed error of the trial
court was harmless, or that claimed error did not rise to the level of plain error, we
conclude that the cumulative effect of such claimed errors is also harmless because
taken together, they did not materially affect the verdict. State v. Leonard, 104 Ohio
St.3d 54, 89–90, 2004–Ohio–6235, 818 N.E.2d 229, 270 at ¶ 185.
{¶106} As this case does not involve multiple instances of error, Dorsey's sixth
assignment of error is overruled.
Stark County, Case No. 2014CA00217 34
{¶107} For the foregoing reasons, the judgment of the Court of Common Pleas of
Stark County, Ohio, is affirmed.
By Gwin, P.J.,
Wise, J., and
Baldwin, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY
WSG:clw 1027